Penney v Wylie Properties Limited

[2022] NZHC 2315

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-79

[2022] NZHC 2315

BETWEEN

STEPHEN CHARLES PENNEY

Plaintiff

AND

WYLIE PROPERTIES LIMITED

First Defendant

DAVID KEITH WYLIE
Second Defendant

DONNA MARIA SUMINOVICH

Third Defendant

Hearing:

On the papers

Appearances:

Plaintiff in person

S E McCabe and R J Reeves for Defendants

Judgment:

12 September 2022

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[Costs]

This judgment was delivered by me on 12 September 2022 at 4.00 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

[1]    This proceeding was set down to be heard on 17 August 2022. The matter for determination was an opposed application by the defendants for summary judgment. The day before the hearing, the plaintiff, who is acting for himself, contacted the Registry and indicated that he was unable to proceed for health related reasons. At that stage, no evidence to support this informal application was provided. Ms McCabe

PENNEY v WYLIE PROPERTIES LIMITED [2022] NZHC 2315 [12 September 2022]

who is acting for the defendants did not oppose the vacation of the fixture. Indeed, some days prior to this the defendants had themselves applied for an adjournment of the hearing on the grounds that the plaintiff had failed to file and serve his submissions. That application had been declined by Moore J.

[2]    In the end, the view I reached was that the only practical option was to accede to the plaintiff’s request and the fixture was vacated.

[3]    At that stage, Ms McCabe signalled that the defendants intended to make an application for wasted costs. An important basis for this was that the plaintiff had apparently indicated that he might be unable to participate in the hearing at an early stage and had been told that he should apply for an adjournment in good time but did not.

[4]    On 24 August 2022 Ms McCabe filed and served a memorandum which traversed events leading up to the vacation of the fixture, and confirmed that the defendants had incurred wasted costs in preparing for the hearing. The defendants’ scale costs were set out in a schedule to Ms McCabe’s memorandum. She assessed the wasted component of these at $5,285 (plus GST), calculated on the basis of actual costs because the second and third schedules did not apply.

[5]    Following the vacation of the fixture Mr Penney provided the Registrar with a medical certificate from his GP, Dr Roger Parr. This certificate was dated 19 August 2022. I am left to assume, and I do, that Mr Penney’s condition as described by Dr Parr existed 48 hours earlier. Dr Parr says that Mr Penney is suffering from “severe back pain” which is apparently the subject of ongoing investigation and treatment by a specialist. Dr Parr says that as a result Mr Penney is “unable to think clearly and would not therefore be able to manage forth coming [sic] court hearings fairly”.

[6]    The only response to Ms  McCabe’s  24 August  2022  memorandum  from Mr Penney  is  a  two-paragraph  memorandum   which  he  filed  and  served  on     2 September 2022. This says that he is still receiving treatment for “serious back pain”. He goes on to describe scheduled consultations with various medical advisers,

the last of which is to take place on 13 September 2022, and asks that no further fixture be scheduled until after that date.

[7]    Whilst that is hardly a response to Ms McCabe’s memorandum, it is all that the Court has from Mr Penney.

[8]    Ms McCabe has filed a further memorandum in which she sets out various breaches by Mr Penney of his obligations to the Court and the defendants in the course of this litigation (failure to file and serve a synopsis of his submissions and bundle of authorities prior to the hearing; failure to make himself available for the 17 August 2022 hearing or provide any reasonable explanation at the time; failure to respond in any substantive way to  the  defendant’s  application  for  a  wasted  costs  order).  Ms McCabe submits — correctly it appears to me — that there is really no credible explanation why Mr Penney could not have applied earlier for the adjournment of the fixture which would have saved the defendants from having to make their own application and incur wasted costs in preparation for the hearing.

[9]    Ms McCabe invites the Court to consider making orders barring Mr Penney from opposing the defendants’ wasted costs application or their summary judgment application and striking out his proceeding.

[10]   I would not have thought that there was any scope for Mr Penney to be heard further on the costs application. He has had his opportunity.

[11]   However, barring Mr Penney from opposing the defendants’ application for summary judgment and striking out his proceeding is another matter.

[12]In my assessment, those would not be appropriate responses.

[13]   However frustrating the situation may be for the defendants, there is at least some evidence indicating that Mr Penney is suffering from debilitating back pain and I’m prepared to accept that he was not in a fit condition to deal with the application on 17 August 2022.

[14]   That said, I am satisfied that the defendants are entitled to a wasted costs order, essentially on the basis that Mr Penney could have taken steps much earlier than he did. I accept Ms McCabe’s assessment of quantum as reasonable. The scales provided in the High Court Rules are not directed at actual costs but rather two thirds of objectively assessed reasonable costs. Taking Ms McCabe’s assessment of actual wasted costs as a starting point, it seems to me that substantial justice will be done if the Court makes a wasted costs order against Mr Penney in favour of the defendants of two thirds of those costs.

[15]   The plaintiff is ordered to pay the defendants’ wasted costs in the sum of $3,520 plus GST.

[16]   I also make an order debarring the plaintiff from prosecuting his substantive claim pending the payment of that costs award. That order is not intended to interfere with the ability of any of the defendants to proceed with their summary judgment applications or for that matter with the third defendant seeking judgment by default.

[17]   Finally, I direct the Registrar to liaise with Mr Penney and the defendants’ solicitors or counsel with a view to setting down the defendants’ application for summary judgment and the third defendant’s application for judgment by default. I remind the Registrar that if these matters are set down to be heard together, which is probably sensible, then that would have to be in front of a High Court judge because an Associate Judge does not have jurisdiction to deal with the judgment by default component.

Associate Judge Johnston

Solicitors:
Sheila McCabe Barrister, Auckland for defendants